ANIL KUMAR SHARMA, J. - (1.) THE appellants have challenged the judgment and order dated 20.01.1997 passed by Sessions Judge, Etah in Sessions Trial no. 17 of 1993, whereby appellant Shree Dev has been convicted for the offences punishable under sections 147, 302/149 IPC and has been sentenced to undergo two years R.I. and fine of Rs. 2,000/- under section 147 IPC and imprisonment of life under section 302/149 IPC. THE rest of the appellants have been found guilty for the offences punishable under section 148 and 302/149 IPC and each of them has been sentenced to undergo two years R.I. and fine of Rs. 2,000/- under section 147 IPC and imprisonment of life under section 302/149 IPC. In default of payment of fine each accused appellant has been directed to undergo R.I. for two months.
(2.) FACTS germane to this case are that in Mohalla Chaudah Paur, Kasba and P.S. Soron, District Etah (now district Kanshi Ram Nagar) accused Sridev, deceased Satya Narayan and Laxmi Narayan were three real brothers. Laxmi Narayan, the younger-one has no issue so he has executed a will in favour of Satya Narayan's sons. The appellants were enraged with this disposition of the property by Laxmi Narayan and several cases were pending between them. It was alleged that on 08.09.1992 at about 4.30 P.M. deceased Satya Narayan along with Sarvan Kumar and brother Laxmi Narayan as per daily routine after easing themselves came on Ganga Ghat near Ambhagarh Akhada for taking bath and at the same time from the side of Dhimaro Ka Mohalla Bhola Shankar and Kuldeep Tiwari arrived there and talking each other they reached the temple of Goverdhan Nath Ji. In the meantime, from south side (Tulsi Park) Sridev s/o Ram Pratap and his four sons Munna Lal, Raju, Nityanand and Uchchav @ Pappu, Mohalla Chaudah Paur, P.S. Soron armed with Kanta, knives and country-made pistol reached near Satya Narain and they all catching him started assaulting with Kanta and knife. On the shrieks of his father Sravan Kumar and others reached towards him and saw that Nitya Nand fired from his country made pistol and all the accused persons made their escape good towards south-west side. It was found that Satya Narayan succumbed to the injuries on the spot. The written report of the incident scribed by Kuldeep Kumar Tiwari was submitted by Sravan Kumar s/o deceased at 5.10 P.M. the same day at P.S. Soron and he alleged that due to enmity on account of old litigation the accused persons have assaulted the deceased. On the basis of written report case crime no. 237/92 was registered at P.S. Soron under sections 147, 148, 149 and 302 IPC, investigation whereof was entrusted to S.I. D.D. Prajapati. After interrogating the complainant at police station the Investigating Officer reached at the spot, prepared inquest of the corpse of the deceased. He collected the plain and blood stained sample of cement concrete and sealed into two different containers vide memo Ex. Ka-13. The stick of the deceased was found floating in Gangaji and the same was also seized per memo Ex. Ka-14. Thereafter inquest on the dead body of the deceased was performed and his cadaver was sent for post mortem examination in sealed cover. Dr. Satya Mitra, PW-3 conducted autopsy on 09.09.2012 at 12.30 P.M. He found that 60-years' old deceased was average built with normal muscularity. Rigor Mortis was present in upper as well as lower extremities. Abdomen and scrotum were distended. Dr. Mitra found the following ante mortem injuries on the person of the deceased: 1. Incised wound 10 cm x 1 cm x brain matter deep over right side and back of head at left of back of upper end of right external ear. Skin muscle (scalp) bone meninges and brain cut. 2. Multiple incised wound in an area 10 cm x 7 cm on the right side cheek and upper part of neck measuring 1 cm x 0.3 cm muscle deep to 3 cm x 0.7 cm x bone deep. Mandible on right side fractured. 3. Stab wound 3 cm x 1 cm x thoracic cavity deep over right side lateral side of chest 8 cm below axillary crease. On dissection subcostal muscle underlying rib, pleura right side, Lung right side, cut direction right to left transverse. 4. Stab wound, 3.5 cm x 1 cm x thoracic cavity deep on left side chest 6 cm below left nipple. Skin, muscle underlying the 8th rib, left pleura, left lung and pericardium part are cut. Direction left to right and slightly upwards. 5. Multiple incised wound in an area 10 cm x 5 cm on the left side chest above nipple measuring 2 cm x 0.3 cm x skin deep to 3 cm x 0.5 cm x muscle and rib deep. 6. Multiple incised wound over back of chest in an area 20 cm x 20 cm from base of neck above measuring 2 cm x 0.2 cm. Muscle deep to 3 cm x 0.5 cm x thoracic cavity deep. Right scapula cut. Right pleura and right lung cut at places. 7. Multiple incised wound in an area 10 cm x 6 cm over front and external aspect of left upper arm 3 cm below the left shoulder joint. In the opinion of the doctor the deceased suffered death about a day before due to haemorrhage and shock, as a result of ante mortem injuries. The investigation Officer prepared the site plan of the scene of occurrence, interrogated the witnesses and after completion of investigation submitted charge sheet against all the five named accused persons. After committal of the case to the Court of Session, the Sessions Judge, Etah framed charges under sections 147 and 302/149 India Penal Code against accused Sri Dev and remaining accused persons were charged for the offences punishable under sections 148, 302/149 Indian Penal Code. All the accused persons abjured their guilt and claimed trial. In order to prove its case the prosecution had examined the complainant Sravan Kumar PW-1, Bhola Shanker PW-2, Dr. Satyamitra PW-3, S.I. Ramesh Chandra Sharma PW-4 and S.I. D.D. Prajapati PW-5.
(3.) ALL the accused persons in their separate statement under section 313 Cr.P.C. have again denied the entire prosecution story as also the circumstances appearing against them and pleaded false implication on account of animosity. However, no evidence in defence was adduced by any of the accused. In this appeal since inception as many as nine advocates have put in their appearance, but none had assisted the Court in the disposal of this old appeal, so we were constrained to appoint Sri Rahul Misra, Advocate as Amicus Curiae for the accused appellants. We have heard Sri Rahul Mishra, Amicus Curiae for the appellant and Sri Syed Ali Murtaza, AGA for the State and also carefully perused the original record of the case.;